Holder: "Waterboarding is Torture"

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WASHINGTON - DECEMBER 9: U.S. Attorney General nominee Eric Holder poses for photographers during his meeting with U.S. Senate Majority Leader Sen. Harry Reid (D-NV) on Capitol Hill December 9, 2008 in Washington, DC. Holder will be the first African American to hold the position if confirmed. (Photo by Alex Wong/Getty Images)

It was the latest signal that President-elect Barack Obama will chart a new course in combatting terrorism. As recently as last week, Vice President Dick Cheney defended waterboarding, a harsh interrogation tactic that simulates drowning, saying it provided valuable intelligence.

Team Obama

The CIA has used the tactic on at least three terrorism suspects, included alleged Sept. 11 mastermind Khalid Sheikh Mohammed. In past hearings, Attorney General Michael Mukasey and his predecessor, Alberto Gonzales, frustrated senators by repeatedly sidestepping questions about waterboarding.

It was the first topic discussed at Holder's confirmation hearing, and he made an unambiguous statement about its nature: "Waterboarding is torture."

The declaration sent a wave of approval through the public viewing gallery, where protesters, dressed in orange prison scrubs like those worn by detainees at the Guantanamo Bay military prison, held signs calling for an end to torture.

"The decisions that were made by a prior administration were difficult ones. It is an easy thing for somebody to look back in hindsight and be critical of the decisions that were made," Holder said. "Having said that, the president-elect and I are both disturbed by what we have seen and what we have heard."

Obama has described Guantanamo Bay as a "sad chapter in American history." He plans to issue an executive order calling for the prison to be closed.

Holder echoed that stance Thursday but said shuttering the prison would be difficult and would take time. Many detainees could be transferred to other countries, he said, and some could be charged and jailed in the U.S. That is a contentious proposal because many oppose the idea of bringing terrorism suspects onto U.S. soil.

The incoming Obama administration has not indicated what would happen to the detainees who were transferred to the United States. Holder said the administration was considering prosecuting the detainees in civilian courts, military courts or in some new hybrid court.

"I think we want to leave our options open," Holder said. "The one thing I can assure you and the American people and, frankly, the world is that whatever system we use, it will be consistent with our values. It will be a system that has due process guarantees. It will be seen as fair."

He also did not have an answer to how the new administration would handle detainees deemed too dangerous to release but who could not be prosecuted without endangering CIA operatives or jeopardizing intelligence methods.

Holder promised to be an independent attorney general, telling lawmakers that he did not believe the attorney general's job was to serve as the president's lawyer — a frequent criticism of Gonzales' tenure under President George W. Bush. He also pledged to restore the independence of a Justice Department where Bush administration appointees used political benchmarks when making hiring decisions.

"One of the things I'm going to have to do as attorney general in short order is basically do a damage assessment," Holder said.

While the GOP was expected to use the confirmation hearing to demonstrate that the party is still relevant despite a Democratic sweep in November, Holder was largely spared any confrontational questions during the morning hours of the daylong hearing.

After Holder issued his opinion on waterboarding, Republican Sen. Arlen Specter turned the questioning briefly toward the 2001 pardon of fugitive financier Marc Rich. Holder, who was the No. 2 official at the Justice Department at the time, told the White House that he was neutral, leaning toward favoring the pardon. On Thursday, Holder repeated an apology, saying he regrets not studying the pardon more.

But Holder said he learned from the mistake and would be a better attorney general because of the experience.

Sen. Jeff Sessions, R-Ala., later questioned Holder about his role in President Clinton's decision to grant clemency to Puerto Rican separatists involved in the deadly 1982 bombing of a Manhattan federal building. The 16 members of the Armed Forces of National Liberation served 19 years in prison before the clemency was awarded.

Though human rights groups applauded the decision, lawmakers from both parties criticized the move. Holder said Thursday that it was a difficult decision for Clinton but described it as "reasonable," contending that those released from prison did not carry out the violent acts. Former FBI officials have disputed that view.

If confirmed, Holder would be the nation's first African-American attorney general. No Republican has announced plans to oppose Holder's nomination.